P. G. Madhavan v. P K Santhakumari Amma — 1994 DIGILAW 254 (KER)

JUDGMENT T.V. Ramakrishnan, J. 1. This Writ Appeal is by the third respondent in O. P. No. 7370 of 1993 filed by the first respondent herein as the petitioner. 2. The essential facts of the case necessary for arriving at a decision are thus; Two aided schools, one a High School without any primary section attached to it and another, an Upper Primary School, were established by one Shri Govindan. While the Upper Primary School was established in 1931, the High School was established in 1948. Admittedly the two Schools were managed by Govindan till his death. After the death of Govindan ownership of the Schools with all their assets stood vested in his widow Gowri and children including the appellant in this appeal. On the basis of a registered agreement entered into between all the coowners dated 20-7-1966 Gowri became the Manager of both the Schools. While so, the first respondent was appointed as an upper Primary School Assistant in the U.P. School on 22-8-1973. Even at the time of appointment first respondent was admittedly qualified to be appointed as HSA (Natural Science). Later first respondent was thrown out of the School due to fall in division and was working as a protected teacher in other Government Schools during the period from 1-6-1980 to 24-11-1991. On 25-11-1991 she rejoined service in the U.P. School in question from where she was thrown out of service. Meanwhile as per proceedings of the Director of Public Instruction, Trivandrum dated 16-5-1984 the management and ownership right in respect of the U.P. School with all its assets as a going concern was permitted to be changed in favour of Smt. Anitha Vasanth, grand daughter of Smt. Gowri after complying with all the requirements of R.5A of Chap.3 of the Kerala Education Rules (for short "the KER"). Ext. R4(c) is the copy of the order of the DPI sanctioning change of management with change of ownership as well. It is relevant to note that at the time of change of management Gowri has produced a consent statement with the signature of all the then teaching and non teaching staff members of the U.P. School. First respondent was at the relevant time not a member of the staff of the U.P. School since she was working in other schools as a protected teacher. She was not a signatory to the consent statement also. First respondent was at the relevant time not a member of the staff of the U.P. School since she was working in other schools as a protected teacher. She was not a signatory to the consent statement also. But obviously on the basis of a representation made by the first respondent to the authorities to take appropriate action to preserve her right to be appointed in a vacancy of HSA (Natural Science) in the High School under the management of Gowri, the authorities seems to have insisted and obtained before sanctioning the change of management, a document in writing styled as an 'affidavit' wherein Gowri has stated as follows: "I Gowri Daughter of Madhavan residing at Peroor House Thazham Karimpinpuzha hereby solemnly affirm that Smt. P. K. Santhakumari. U. P. S. A. will be absorbed in the H. S. Kizhikkalidavaka under my management when a vacancy arises liable to be appointed her in that school. K. Gowri, Sd/- A photocopy of the so called affidavit has been produced as Ext. P2. It was after obtaining Ext. P2 affidavit, the ownership and management of the U.P. School was transferred as per Ext. R4(c). Thereafter, when vacancies used to occur in the High School, first respondent used to put forward her claim to be appointed or absorbed as a HSA in the School in question to the authorities. To such representations the educational authorities used to inform her that the concerned vacancy was filled up by giving appointment to thrown out hands under R.51 A of Chap.14 of KER and that her rights will not in any way be affected by such appointments on getting such replies first respondent had in the past kept quite. While so, the management of the High School was permitted to be changed in favour of the appellant in this appeal as per proceedings of the District Educational Officer, Kottarakkara dated 30-7-1991 for a period of two years commencing from 1-7-1991 and ending with 30-6-1993. After such transfer of management in favour of the applicant altogether 5 vacancies including one vacancy in the post of HSA (Natural Science) arose in the High School in 1993. First respondent made Ext. After such transfer of management in favour of the applicant altogether 5 vacancies including one vacancy in the post of HSA (Natural Science) arose in the High School in 1993. First respondent made Ext. P6 representation to the manager of the High School to appoint her in the vacancy based upon the undertaking to absorb her in a future vacancy given by Gowri, the manager of the School at the time of changes of Management and ownership of the U.P. School in 1984. The O.P. was filed by the first respondent apprehending that the appellant would appoint a new hand in the vacancy ignoring her legitimate right to be appointed to the post. O P. was actually filed on 5-6-1993. At the time of admission on 5-6-1993 this Court issued an interim direction to the third respondent (appellant herein) not to appoint any other teacher to the post of HSA (Natural Science) in the school which has fallen Vacant consequent on the retirement of one Ramachandran Pillai. According to the appellant Manager even before this Court issued the direction prayed for by the first respondent, he has appointed the 4th respondent in the appeal in the vacancy of HSA (Natural Science). She has joined service on 7-6-1993 and has continued her service till 14-6-1993 on which date she was relieved from service subject to the result of the O. P. in view of the direction issued by this Court in the O. P. on 5-6-1993. The stand so taken by the appellant has been disputed by the first respondent contending that the appointment given to the 4th respondent was clearly in violation of the direction issued by this Court in her favour in the O.P. and it was fearing contempt action that was taken by her, the 4th respondent was relieved from duty by the appellant. It is unnecessary to go into the above controversy for the purpose of deciding the questions arising for consideration in the appeal. For the purpose of the appeal it is sufficient to note that the vacancy in question exists even now if the first respondent is entitled to be appointed to the post in law. It is unnecessary to go into the above controversy for the purpose of deciding the questions arising for consideration in the appeal. For the purpose of the appeal it is sufficient to note that the vacancy in question exists even now if the first respondent is entitled to be appointed to the post in law. In the above facts and circumstances, the ultimate question to be decided in the appeal is whether the first respondent is entitled to get a writ of mandamus or other appropriate writ, order or direction directing the appellant not to appoint a fresh hand in the post of HSA (Natural Science) which arose in the school on 31-3-1993 and to appoint the first respondent to the said post. 3. After referring in detail to the pleadings, evidence in the case and the respective contentions put forward by the learned counsel for the parties, the learned Single Judge has allowed the O. P. considering mainly two important, aspects of the case. The first aspect considered was whether the High School and the U. P. School are under the same educational agency. On this aspect the learned Judge found that the educational agency for both the institutions is the same. Such a conclusion was reached mainly relying upon Ext. P11 judgment in O. P. No. 305 of 1976 dated 30-5-1978 and on the basis of the files' produced in the case on behalf of respondents 1 and 2, in the O. P. The second aspect considered by the learned Judge was whether the first respondent was having a right to be appointed as HSA (Natural Science) in the High School even assuming that the U. P. School is under a different educational agency. On the above aspect also the decision taken by the learned Judge was in favour of the first respondent. It was found relying upon the decision reported in Rajendran v. State of Kerala ( 1993 (1) KLT 893 ) that the first respondent has a right to be appointed as HSA (Natural Science) in the High School under the management of the appellant in the retirement vacancy which arose on 31-3-1993. In coming to such a conclusion strong reliance was placed on Ext. In coming to such a conclusion strong reliance was placed on Ext. P2 undertaking given by Gowri who was acting as the Manager of the two schools at the time when the undertaking was given and the U.P. School was transferred to her, grand daughter, Anitha Vasanth, Learned Judge held that the appellant, present Manager, is bound by the said undertaking and there is nothing in the KER in the decision reported in John v. Director of Public Instruction ILR 1975 (2) Ker. 604 which was strongly relied upon by the learned counsel for the appellant before the learned Judge which would militate against, insisting on the successor Manager honouring the commitment made by his mother Gowri when she sought the transfer of management of the U.P. School in favour of Anitha Vasanth. Ultimately the learned Judge concluded by observing that in the face of Ext. P2 and the benefit derived thereby Gowri by being enabled to transfer the management of the U.P. School to Anitha Vasanth I am of the view that Gowri and her successors including the present Manager are bound by the undertaking contained in Ext. P2. In this view of the matter the learned Judge held that first respondent is entitled to be appointed as. HSA (Natural Science) in the High School against the vacancy that arose on 31-3-1993. The learned Judge accordingly granted a declaration to that effect in favour of the first respondent as per the impugned judgment. 4. Till 16-5-1984, the date of Ext. R 4(c) order. Gowri was the Manager of both Schools. But in the light of Ext. R 4 (c) there cannot be any doubt about the fact that the ownership and management of the U.P. School was transferred to Anitha Vasanth exclusively and thereafter Gowri and other coowners had no right whatsoever over the U.P. School. Ext. P11 is a judgment rendered on 30-5-1978 at a time when both the Schools were admittedly under the management of Gowri and no reliance could have been placed on that judgment to find that the two Schools are even now under the same educational agency and the change effected in respect of the U.P. School on 16-5-1984 was only a change of management and ownership was not changed as per Ext. R4(c). Such a finding will be directly contrary to Ext. R 4(c) and cannot be sustained as legal. R4(c). Such a finding will be directly contrary to Ext. R 4(c) and cannot be sustained as legal. It can only be a finding reached without advertence to Ext. R 4(c). The said finding is also clearly against the specific case set up by the petitioner in Para.3 of the O.P. wherein the petitioner has stated that in the year 1983 the petitioner came to know that steps are being taken by the Manager, Smt. Gowri, to transfer the management of the U.P. School involving ownership to her grand daughter by name Anitha Vasanth. Accordingly we are of the definite view that there was a change of management and ownership of the U.P. School in favour of Anitha Vasanth and that was approved by the Department in accordance with R.5A of Chap.3 of the KER as per Ext. R 4(c), order and that on and after 16-5-1984, the date of Ext. R4(c), the two schools are bound to be treated as totally independent Schools under different educational agency and under different management. As such we would set aside the finding to the contra entered by the learned Single Judge. 5. Narendran, J. had occasion to consider the legal implications and consequences of a change of management involving change of ownership consequent upon a partition of three school among the legal heirs of a deceased owner of those schools and approved by the Department under R.5A of Chap.3 of the KER in John v. Director of Public Instruction (ILR 1975 (2) Ker. 604). That was a case where during the lifetime of the original owner the three schools were admittedly under the management of the owner himself. As regards the staff of the three schools, there was a common seniority list also. On the death of the owner one of his two sons was appointed as Manager of the three schools for a period of three years. Thereafter there was a partition of the assets of the deceased and in the partition the High School was allotted to one of the sons and the Upper Primary and Lower Primary Schools were allotted to the other son of the deceased. On the basis of the partition so effected, the allottee of the High School sought for permission to effect the change of management of the respective schools in the name of the respective allottees. On the basis of the partition so effected, the allottee of the High School sought for permission to effect the change of management of the respective schools in the name of the respective allottees. The question which arose for consideration was whether any conditions can be imposed for the change of management and if so what all conditions can be insisted in such a case. While dealing with the question, the learned Judge has observed thus: "......... If the change of management will in any way adversely affect the interests of the institution, the Director of Public Instruction may have the power to withhold permission specifying the reasons. As far as the interests of the staff are concerned, protection can be there only to the extent that is provided by the Act and the Rules. By a transfer like this, the staff cannot be denied their valid rights as teachers of an aided school. But it cannot be forgotten that the effect of the transfer that has resulted by the partition is that every one of the three schools becomes separate institutions. In that case, the staff in one of the schools cannot in any way insist that he or she should be given the option to be in the staff of any of the other two schools. Even though as per the common seniority list approved prior to the partition, a member of the staff in any one of the schools / was senior to another member of the staff in any one of the other two schools, he or she cannot claim any superior right because they have become members of the staff of separate schools. "The interests of the staff" mentioned in R.5A of Chap.3 of the Rules can only be their interests as members of the staff of the three separate schools. As members of the staff of the three separate schools they cannot insist on the continuance of the common seniority list. The common seniority list has disappeared the moment the schools were partitioned ...." The principles laid down in the above decision was followed with approval by a Division Beach of this Court in the decision reported in Maroli Balan v. Maroli Dannu and Others ( 1986 KLT 919 ) and by a learned Single Judge in the decision reported in Narayanan v. State of Kerala (ILR 1992 (2) Ker. 340) Since the change approved as per Ext. P 4(c) order is a change of management involving change of ownership of the U.P. School in question, we are of the view that the principles laid down in John's case (ILR 1975 (2) Ker. 604) would squarely apply to the facts of the case on hand and on and after 16-5-3984 the two Schools have to be treated as totally independent and separate institutions. The Members of the staff of the one school cannot on that ground alone claim any right under the Act and Rules in respect of the other School or as against the owner, manager and staff of the ether school on and after approval of such change under R.5A of Chap.3 of the KER. in the circumstances, we are of the view that the first respondent who is a member of the staff of the U.P. School alone cannot lay any claim to be appointed to the vacancy which arose in the High School on 31-3-1993 under R.43 of Chap.14A of the KER she being a teacher in a separate school under a different educational agency on and after 16-5-1984. 6. The only other question which remains to be considered is whether as a teacher who was thrown out of service from the U.P. School and working as a protected teacher in one of the Government Schools at the time of transfer and later appointed as a teacher of the U.P. School, she is entitled to be appointed in the vacancy which arose on 31-3-1993 in the High School solely on the basis of Ext. P2 undertaking? On this point there had been lengthy arguments on both sides and we may indicate below the main contentions raised by counsel on both sides. 7. In this connection, the learned senior counsel Shri K. Sudhakaran on behalf of the appellant has drawn our attention to Para.12 of the counter affidavit filed on behalf of the appellant wherein the following specific allegations have been made regarding the separate ness of the two schools from the very beginning. ".... The two schools have always been separate entities sanctioned under separate proceedings, having separate premises separate Headmasters separate seniority lists, separate staff fixation orders and has always been administered separately The seniority list approved is produced herewith marked as Ext. R3(a). ".... The two schools have always been separate entities sanctioned under separate proceedings, having separate premises separate Headmasters separate seniority lists, separate staff fixation orders and has always been administered separately The seniority list approved is produced herewith marked as Ext. R3(a). The details of establishments sanctioned for G.V.S.U. P. School for the year 1980-81 is produced herewith as marked as Ext. R3(b). Shri K. Govindan was the Manager of the G. V. Sanskrit U.P. School in 1948. The school could have been upgraded as G.V.S. High School or it could have been opened as a "High School with Upper Primary Sections attached" as the Travancore Education Code provided. No such thing took place, instead Government Sanctioned H. S. Kizhikalidavaka by a distinct proceedings." Learned counsel has pointed out that the above allegation have not been specifically denied by the petitioner in the detailed reply affidavit filed specifically with reference to the counter affidavit of the appellant. Further it was submitted relying upon the averments contained in Para.14 of the reply affidavit that the petitioner's case is also not different in this regard. Specific reference was made to the following averment in paragraph H of the reply affidavit. "............ Admittedly G. V. S. U. P. School is not treated as part of the High School even at a time when the above schools were under the same management." In the light of the above pleadings, it was contended that even at the time of transfer of the management of the U.P. School in 1984 the first) respondent could not have claimed any right under R.43 of Chap.14A of the KER for appointment in the High School in question since the two schools were two independent schools though functioning under the same management and belonging to the same educational agency. It was also contended that in law there cannot be any combined seniority list of teachers who are working in a High School and Primary School functioning as independent schools even if they are under the same management. It was also contended that in law there cannot be any combined seniority list of teachers who are working in a High School and Primary School functioning as independent schools even if they are under the same management. Further it was submitted that since the first respondent was not having any right to be appointed in the High School as on the dale of transfer of ownership and management of the U.P. School under any of the provisions of the Act and Rules, there was no question of preserving or protecting any of her rights by giving an undertaking by the transferor manager and educational agency. In the circumstances, Ext. P2, even treating as a genuine undertaking, is totally ineffective. It cannot also be treated as a valid undertaking binding even on Gowri who is alleged to have given the undertaking. At any rate it cannot bind the educational agency owing the High School. Ext. P2 though styled as an 'affidavit' bears no date. It has no attestation also. As such it cannot be treated as a valid affidavit at all. Even as an undertaking the appellant is challenging the genuineness of Ext. P2. Even accepting it as a genuine and valid undertaking, it is too vague and indefinite and as such incapable of being enforced. At any rate, the first respondent is not entitled to get any reliefs based upon Ext. P 2 undertaking alone in these proceedings under Art.226 of the Constitution of India especially a writ of mandamus as prayed for in the O. P. 9. In answer to the above contentions, learned counsel Smt. Seemanthini has reiterated with vehemence the various submissions made before the learned Single Judge and has further submitted that whatever may be the legal effect of a change of management involving change of ownership, in normal cases, in this case Gowri and her successor managers are bound by Ext. P2 undertaking given at the time of change of management. It was acting on the basis of Ext. P 2 undertaking that change of management of U.P. School was permitted by the Department. As such the view taken by the learned Judge that the appellant, the present manager of the school should be pinned down strictly to the above undertaking is perfectly valid and does not call for any interference in this appeal. P 2 undertaking that change of management of U.P. School was permitted by the Department. As such the view taken by the learned Judge that the appellant, the present manager of the school should be pinned down strictly to the above undertaking is perfectly valid and does not call for any interference in this appeal. The learned counsel has further contended relying upon the various provisions in the Act and Rules especially R.34 arid 35 of Chap.14A of the KER that being schools under the same educational agency a common seniority list was bound to be maintained by the Manager before the transfer of management of the U.P. School. As the first respondent was a teacher in the U.P. School under an educational agency owning another High School the first respondent was entitled to claim appointment in one of the vacancies of HSA (Natural Science) in the High School in question under R.43 of Chap.14A of the KER even at the time when transfer of management of the U.P. School was applied for. It was taking note of such legal right that Ext. P2 undertaking was insisted upon and obtained by the Department as a condition for approval of management. It was in recognition of such right the then Manager Gowri has given Ext. P2 undertaking. As such the first respondent is entitled to get necessary reliefs including a mandamus as prayed for to enforce such statutory right recognised and preserved at the time of transfer of management even now. On all occasions when vacancies had occurred in the High School on and after 16-5-1984 the first respondent had put forward her claim under R.43 as evidenced by Exts. P7, P8, and similar representations. In the circumstances it was submitted that the appeal is without any merit. 10. In the light of the rival contentions raised as noted above, it may be necessary to consider the following aspects of the point at issue separately; (1) Whether the two schools were treated as one unit before the ownership and management of the U.P. School was transferred in 1984? (2) Whether the first respondent was having any right under R.43 of Chap.14A of the KER for appointment in the High School immediately prior to the transfer of ownership and management of the U.P. School? (2) Whether the first respondent was having any right under R.43 of Chap.14A of the KER for appointment in the High School immediately prior to the transfer of ownership and management of the U.P. School? and (3) If not, whether the first respondent is entitled to get any reliefs in the O. P. in enforcement of Ext. P2 undertaking even assuming that it is a genuine and valid undertaking given by Gowri, the Manager of the two schools at the time of transfer of ownership and management of the U. P. School in 1984. 11. POINT NO. 1: From the pleadings and the available materials on record, the only possibleconclusion that can be reached is that from the very beginning the two schools were treated as separate institutions with separate seniority lists and were never treated as one unit for any purpose whatsoever. In fact the specific averment in para 14 of the reply affidavit to the effect that admittedly G. V. S. U. P. School is not treated as part of the High School even at a time when the schools were under the same management is a clear and categoric affirmation of the said case pleaded by the appellant. No other evidence has been produced in the case to establish that the two schools were treated as one integrated unit and that there was a combined or common seniority list of all the members of the staff working in the two Schools. In the absence of a specific plea and reliable evidence to show that the U.P. School was part of the High School or was only a section attached to the High School it has to be held that, the two Schools were independent and were never treated as one unit. It is equally clear that till the transfer of management in 1984, the educational agency and the manager of the two Schools were the same. 12. POINT NO. It is equally clear that till the transfer of management in 1984, the educational agency and the manager of the two Schools were the same. 12. POINT NO. 2: R.43 of Chap.14A of the KER is thus: "Subject to R.44 and 45 of Considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available." (rest omitted) The working of the Rule would indicate that only a qualified hand available in the 'lower grade' is eligible to be considered for promotion according to 'seniority' and considerations of efficiency. If that be so, only qualified hands working in one School forming a unit by itself or more than one school liable to be treated as one unit and with reference to which a common seniority list is bound to be maintained under R.35 of Chap.14A of the KER would become eligible for consideration for promotion under R.43. It is only in such cases the qualified hands can be available in the 'lower grade' for being considered for promotion according to seniority. In the case of the first respondent at the time of transfer she was not a member of the staff of either of the schools and as such cannot be considered as a qualified hand available in the lower grade of pay in either of the schools for being considered for promotion under R.43. The mere fact that she was once upon a time a teacher in the U.P. School may not make her eligible to claim promotion and posting in the High School as HSA (Natural Science) under R.43 though she was qualified to be appointed as such when she was appointed as an UPSA. As a protected teacher who was already relieved from the U.P. School her only claim was under R.51A for promotion for future vacancies in the U.P. School on the date of transfer. She could not have on that date bargained for appointment or absorption in the High School under R.43. It is a provision for promotion of existing teacher as has been made clear in the decision reported in Catherine v. Manager. H. S. Mundoor (1985 KLT SN 23). 13. She could not have on that date bargained for appointment or absorption in the High School under R.43. It is a provision for promotion of existing teacher as has been made clear in the decision reported in Catherine v. Manager. H. S. Mundoor (1985 KLT SN 23). 13. The contention that as per R.34 and 35 of Chap.14A of KER the educational agency was bound to prepare a combined seniority list and a common seniority list of the staff of the High School and U.P. School and if that was done, the first respondent would have been in the common seniority list and would have been entitled to be considered as a qualified hand in the lower grade available to be considered for appointment in the vacancy of HSA (Natural Science) in the High School cannot also be accepted as valid and tenable. First of all actually there was no common seniority list prepared for the staff of the two schools treating the two schools as one unit. R.34 only contemplates preparation of separate combined seniority lists of teachers working in the High School and teachers working in Upper Primary and Lower Primary Schools. The Schools for general education are classified into two grades, namely primary and secondary as per R.2 of Chap.2 of the KER. High Schools fall under the secondary grade whereas Primary Schools fall under the primary grade. The common seniority list required to be prepared as per R.35 of schools under the same educational agency in a district or more than one district within a region can only be a common seniority list of all teachers working in different schools falling in the same grade. There cannot be any common seniority list of teachers working in schools belonging to different grades such as High School and U. P. School. This has been specifically held by this Court in the decision reported in Luciamma v. State of Kerala ( 1990 (1) KLT 86 ). The following observations in the above decision would make the position clear. "...... The teaching staff of the Upper Primary School and the teaching staff of the High School belong to different categories. They have no common seniority. The following observations in the above decision would make the position clear. "...... The teaching staff of the Upper Primary School and the teaching staff of the High School belong to different categories. They have no common seniority. No provision of K. K. R. has been brought to my notice which enjoins a corporate management to prepare a common seniority list of the members of the teaching staff of primary schools and High Schools even if they are run by a Corporate management." The statutory provisions are to the contrary. Separate seniority lists are to be maintained ........." In the light of the above categoric statement of law by a learned Judge of this Court with which we agree, there is no merit in the contention of the learned counsel for the first respondent that a common seniority list of all the teachers in both the High School and U.P. School should have been prepared and if such a common seniority list was prepared, the first respondent would have been a qualified hand in the lower grade available for consideration for appointment in the vacancy of HSA (Natural Science) in the High School at the time when the two Schools were under one and the same educational agency and management. 14. The contention that on her appointment as a teacher in the U.P. School a right under R.43 of Chap.14A of the KER is vested in her and such right was liable to be preserved in her favour on transfer of management and it was such a right that was protected under Ext. P2 cannot also be accepted as legal. The learned counsel has in this connection relied upon the decisions reported in Padmanabhan Adiyodi v. Manager, CEA ( 1977 KLT 433 ) and G. Narayana Pillai v. Regional Deputy Director ( 1972 KLJ 761 ) They were all cases dealing with the claims put forward by teachers who are in the service of the concerned schools and with reference to existing vacancies. The facts of the case on hand are entirely different and as such the principles contained in those decisions cannot be applied to the facts of the case under consideration. 15. The facts of the case on hand are entirely different and as such the principles contained in those decisions cannot be applied to the facts of the case under consideration. 15. For all the above reasons we are of the definite view that the first respondent had no right to be appointed as HSA (Natural Science) the High School in question at or before the transfer of the U.P. School in 1984. 16. POINT NO. 3: As rightly, pointed out by the learned counsel for the appellant, Ext. P2 though styled as an 'affidavit' cannot be treated as an affidavit at all. The photocopy of the said affidavit produced as Ext. P2 bears no date. There is also no attestation which is an essential requisite of a valid affidavit. The original which is available is the file handed over to us by the Government Pleader also show that there is no date and attestation in the so called affidavit. 17. As an undertaking also it has to be noted that it bears no date and its genuineness itself has been disputed by the appellant. None of the coowners of the schools were parties to it. It was contended that even if it is found to he a genuine document, the undertaking given by Gowri may not be legal by binding on herself, the successor managers and the other coowners forming the corporate educational agency of the school. In the nature of the contentions raised as indicated above, it was necessary to have findings entered on the question of genuineness and binding nature of Ext. P2 before granting any relief based solely upon Ext. P2 even if there was justification for doing so in law. We find that the learned Judge has proceeded on the basis that there is no dispute raised regarding the genuineness and binding nature of Ext. P2 on the appellant and other coowners of the school forming the corporate educational agency of the school. No finding with reference to such questions have been recorded in the judgment under appeal. The disposal of the O. P., without entering such findings, may not in our view be justifiable in the facts and circumstances of the case. 18. P2 on the appellant and other coowners of the school forming the corporate educational agency of the school. No finding with reference to such questions have been recorded in the judgment under appeal. The disposal of the O. P., without entering such findings, may not in our view be justifiable in the facts and circumstances of the case. 18. Moreover, in the light of our finding that first respondent was not having any statutory right or claim under R.43 of Chap.14A of the KER at or before the date of transfer which was liable to be preserved or protected as a condition for transfer, Ext. P2 undertaking which is stated to have been given in recognition of such existing right, could not have been enforced at least in this O. P. filed under Art.226 of the Constitution of India. Even if Ext. P2 is found to be a genuine one it can at best be considered only as a purely contractual undertaking or agreement the breach of which may give rise only to a cause of action for the affected party to approach a Civil Court and not this Court with aa original petition under Art.226 of the Constitution of India either for a relief of declaration that first respondent is entitled to be appointed in the vacancy in question or to compel the appellant Manager to appoint the first respondent in that vacancy. Breach of such an undertaking to give an appointment in the High School for which the petitioner had no existing or vested right under the Act and Rules on the date when the undertaking was given cannot at any rate form the basis for issuance of a writ of mandamus or any direction or order in the nature of a mandamus or even a declaration based upon that undertaking. In the light of the provision contained in the Act and Rules which form a complete code as Car as the service conditions of the teachers, there cannot be any question of enforcement of any right or claim based purely on any agreement or undertaking unless it is either in recognition of any statutory right or pursuant to any provision in the Act or Rules in proceedings under Art.226. 19. 19. In the circumstances, we are inclined to take the view that the learned Judge should have declined to grant any relief to the first respondent petitioner in the O. P. as the claim was one based purely on an undertaking given without any statutory backing or sanction. 20. We are also of the view that the learned Judge was not justified in taking the view that Gowri bargained for a transfer specifically on the basis of Ext. P2 undertaking and got a benefit which she could not have got without giving such an undertaking in question, and as such she and her successors have to be strictly pinned down to the undertaking in question. We feel that the pleadings and evidence in the case are totally insufficient to come to any such conclusion. There is nothing in Ext. R4 (c) to indicate that transfer of management was sanctioned subject to any such condition. Of course, the file produced would show that an affidavit was insisted and obtained before issuing Ext. R4(c) order. But that by itself may not be a circumstance to come to a positive finding that Gowri would not and could not have obtained sanction for change of management under R.5A without giving an undertaking like Ext. P 2. 21. As we have already found that first respondent was not having any right under R.43 of Chap.14A of the KER Gowri was entitled to get the required sanction under R.5 A of Chap.3 of the KER without any condition. 22. Even conceding that first respondent had some right under R.43 to claim promotion in future vacancies, we find it difficult to hold that such rights can be considered as 'interest of the staff for the purpose of R.5A of Chap.3 of the KER, liable to be protected at the time of transfer of management: Going by the principle in John's case (ILR 1975 (2) Ker. 604) 'interest of the staff mentioned in R.5A of Chap.3 of the KER can only be their interest as members of the staff of the separate schools under different educational agency and management. 604) 'interest of the staff mentioned in R.5A of Chap.3 of the KER can only be their interest as members of the staff of the separate schools under different educational agency and management. The provision in R.5A of Chap.3 of the KER cannot be treated as a provision intended to protect or preserve not only existing rights and claims but also rights and claims which may occur in future to a member of the staff in the transferee School so that the same can be claimed even after transfer of ownership and management. It is also relevant to note in this connection that Ext. R4(c) order has not expressly reserved any right of the first respondent or any other teacher working in the U.P. School. 23. In the circumstances there may not be any justification to hold that Gowri has actually obtained a benefit out of the undertaking alleged to have been given by her at the time of transfer. Even without giving such undertaking she was entitled to get sanction for the change of management, We feel that this may possibly be the reasons why the first respondent was not keen in asserting her claim based on Ext. P2 undertaking when 2 vacancies arose earlier in the High School during the time when Gowri herself was in management and they were filled up by teachers who were only having right for appointment under R.51A of Chap.14A of the KER. If the first respondent was having any claim as put forward by her now, claims under R.51A would not have been allowed to prevail over her right under R.43 of that Chapter. The first respondent has chosen to approach this Court only in 1993 after Gowri has ceased to be the Manager in 1991 and that too without making her a party to the proceedings. This would indicate that she herself was not sure about the legal efficacy of the claim and the alleged undertaking said to have been obtained from Gowri. 24. In the circumstances, the O. P. can at best be considered only as one for enforcement of a binding undertaking and in that view the learned Judge should have declined to grant any of the reliefs prayed for in the O. P. on the simple ground that the remedy of Art.226 of the Constitution of India is unavailable for enforcement of a contract qua contract. The following observations of Justice Krishna Iyer in Kulchhinder Singh v. Hardayal Singh ( AIR 1976 SC 2216 ) seems to be apt to be quoted usefully "..................... At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellent is that the remedy of Art.226 is unavailable to enforce a contract qua contract ........................" We would accordingly set aside the judgment under appeal and dismiss the O.P. Writ Appeal is allowed. Parties will bear their respective costs.